Criminal Law Blog

Jury Says It's Confused About an Instruction? The Judge Can't Just Repeat the Original Instruction


Gray v. United States, No. 10-CF-1466
(decided Nov. 7, 2013)
Players: Fisher, Thompson, and Wagner.  Opinion for the Court by Judge Thompson; opinion concurring in part and dissenting in part by Judge Wagner.  PDS for Mr. Gray.  Trial judge: Ann O’Reagan Keary.
Facts:  Jeremiah Gray was convicted of armed robbery and gun charges.  The two complainants alleged that three men robbed them at gunpoint, and one of the men was struck in the face with a gun and injured, but they offered little description of their assailants, other than that they were black men in black jackets.  Shortly after the robbery, an officer saw two men matching that description about a block away, acting as if they were knocking on the door of a residence (the occupant indicated he did not know them).  The officer stopped the two men, Mr. Gray and Frank Tate.  Mr. Gray had nothing incriminating on him; Mr. Tate had some items belonging to one of the complainants.  The officers conducted a show-up identification procedure, and the complainants identified both men as their assailants. 
            During deliberations, the jury sent in a note asking whether “for someone to be found guilty of aiding and abetting an armed robbery and possession of a firearm during a crime of violence or dangerous crime, do they have to have participated at the time of the crime, or could they have participated after the crime occurred?”  The court responded by re-reading the aiding and abetting instruction that it had already given the jury, a copy of which the jury had with them throughout deliberations.
Issue:  Whether the trial court’s response to the jury note adequately responded to, and clarified the confusion revealed by, the jury note.  
Held:   The trial court's response was insufficient.  The note revealed juror uncertainty as to whether Mr. Gray could be convicted if he merely helped Mr. Tate abscond with proceeds from the armed robbery—but did not participate in it himself—and it was incumbent on the court to clarify that such after-the-fact participation was insufficient to convict Mr. Gray of aiding and abetting the armed robberies.
Of note:
  • The Court’s instruction was faulty because it could have left the jurors with the false impression that they could convict Mr. Gray, under an aider and abettor theory, for acting as an accessory after the fact.  The instructions told jurors that they could convict Mr. Gray if he “participated in the crime as something wished to bring about and … intended by his actions to make it succeed,” and since the armed robbery instruction told jurors that robbery required “that the defendant carried away the property after taking it,” it was possible the jury convicted Mr. Gray on the basis that he helped Mr. Tate carry the property away after the fact, rather than for participating in the robbery.  
  • The most important part of this opinion may be in the Court’s harm analysis, where it indicated not only that it was reviewing the instructional error under a Chapman “constitutional harm” standard of review—rejecting the government’s arguments that Kotteakos should apply—but expressly stating that the standard was dispositive of the issue, and that the Court would not have reversed but for its application of Chapman.  So often the Court just punts on these issues and invokes the familiar “under any standard” language that signifies it does not want to get dragged into a debate about which standard for evaluating harm applies.  Not only did the Court refuse to do that here, but by explicitly stating that the standard of review mattered to the disposition, it warded off any future argument that this was just dicta
How to use:
For trial counsel:
  •  The opinion uses strong language telling trial courts that they need to be proactive in clarifying points of juror confusion; where a trial court attempts to re-read an instruction the jury already has in response to a note, this opinion could be used to press for a more concrete clarification (but whether you want to do that will depend on what concrete answer the court will give).
  •  Where the evidence against your client suggests he may have only participated in the charged offense after-the-fact, be pro-active in asking the court to modify any instructions that could lead jurors to convict under an aider and abettor theory for that activity.  Do not wait for a jury note.
For appellate counsel:
  • When raising a claim of instructional error, invoke the Chapman standard of review if the error can fairly be viewed as speaking to “a controlling issue” in the case, and use the facts of Gray when arguing about what constitutes such a controlling issue.  JD